Parshall v Hackney
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Treacy,Lord Justice Patten |
| Judgment Date | 29 April 2013 |
| Neutral Citation | [2013] EWCA Civ 240 |
| Docket Number | Case No: A3/2012/0559 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2013 |
[2013] EWCA Civ 240
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR DAVID DONALDSON QC sitting as a Deputy High Court Judge
Claim No CH/2011/0431
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Patten
and
Lord Justice Treacy
Case No: A3/2012/0559
MR CHRISTOPHER PYMONT QC and MR NIGEL THOMAS (instructed by Wansbroughs) for the Appellant
MR MARTIN RODGER QC and MS STEPHANIE TOZER (instructed by Piper Smith Watton) for the Respondents
Hearing date: 24 th October 2012
Introductory summary
This troublesome case is about title to a small piece of land. It is not big enough (under 2 metres across at its widest point and 4 metres long) to park a car on unless used in conjunction with adjoining land. Being in Chelsea, London SW3 and part of Smith's Charity Kensington Estate, it is worth enough for the parties to survive three rounds of civil litigation: the first before a Deputy Adjudicator to the Land Registry (Professor Robert Abbey) in 2011; the second in the High Court (Mr David Donaldson QC sitting as a Deputy Judge) in 2012; and the third (by way of a second appeal) to this court.
Appellant's property
The appellant's property is at 29 Milner Street (No 29). Title to it was first registered on 6 April 1904 (Title No BGL35489). It was a pub called "The Australian" before Mr Horace Parshall and his wife, Mrs Helen Parshall, bought it in 2006 and converted it into a shop with flats above. Sadly, Mrs Parshall died not long before the hearing of this appeal. Mr Parshall pursues the appeal as the person entitled to be registered as the sole legal owner of No 29.
No 29 is at the western corner of the junction of Milner Street with a private road, Lennox Gardens Mews, which runs along the back of Lennox Gardens to Walton Street. The registered title plan included a triangle of paved land at the front of the building. The triangular area is the land in dispute.
Respondent's property
The respondent's property is at 31 Milner Street (No 31). Title to it was first registered in 1980 (Title No NGL380405). It was transferred to the respondent's father and mother in 1986, and subsequently to other members of her family. Ms Clara Hackney is now the sole registered proprietor, and was substituted as sole respondent by order dated 9 August 2012.
No 31 is at the eastern corner of the Lennox Garden Mews, just across the road from No 29. The Land Registry included the disputed land in the title of No 31. That was a mistake on the part of the Land Registry, because the disputed land was already included in the registered title of No 29.
The problem
On 29 May 1986 No 31 was transferred to members of the respondent's family. The registered transfer included the disputed land. The respondent is currently the sole registered proprietor of No 31 and the disputed land.
The Parshalls were registered as proprietors of No 29 on 12 June 2006, having acquired it by a registered transfer.
Even someone who knows nothing about land registration would realise that concurrent registration of title to the same piece of land in the names of different people is bad news. If spotted early on, the mistake can be easily remedied by rectification of the land register and indemnification by the Land Registry for loss suffered by reason of rectification of the register. The situation is likely to become more difficult to unravel with the passing of time and the accumulation of more reasons for not rectifying the land register.
The problem is that, as a matter of law, the disputed land is owned either by the appellant or by the respondent. They cannot both be owners of a fee simple in the same piece of land. They are not co-owners with beneficial shares in the disputed land. The court has to perform the delicate task of sorting out a muddle which has potentially serious, long term consequences. It has to decide who has the better title to the disputed land and whether the land register should be rectified to reflect that.
That difficult exercise in registered land law and statutory discretion was not made any easier when, in October 2000, the Land Registry made another mistake. That mistake happened in the course of computerising the title plan to No 29. The Land Registry excluded the disputed land from No 29. Although that accidental slip eliminated, to the extent of the disputed land, the overlap between the two registered titles, it did not resolve the questions of either title or rectification.
The disputed land had been part of No 29 for almost a century. Not surprisingly, the Parshalls pointed to the prior registration of title to the disputed land as part of their property and to the fact that the inclusion of the disputed land in the title to No 31 was a mistake not on their part, but on the part of the Land Registry. They made an application on 8 August 2008 to rectify the register by excluding the disputed land from the title plan to No 31. They said that, although the owners of No 31 were registered proprietors of the disputed land and were in possession of it for many years, it would be unjust not to allow rectification.
The application to rectify was resisted on limitation grounds. The Parshalls' application was not an action for the recovery of land, which could be subject to the 12 year limitation period set in the Limitation Act 1980 (the 1980 Act): their case was that they could not have any right of action for the recovery of the disputed land that was capable of being statute-barred before the register was first rectified to exclude the disputed land from the title to No 31 and to include it in the title to No 29. Rectification would be official confirmation and proof that the disputed land was within their title to No 29 (and not within the respondent's title to No 31). It was necessary in order to give them title to sue for recovery of the disputed land.
The opposition to rectification of the land register was not by way of a contest between contradictory registered titles to the disputed land. On this appeal the validity of the initial registration of the disputed land as part of No 29 is not disputed. No reliance is placed by the respondent on the inclusion (by mistake) of the disputed land in the registered title to No 31 (save as regards discretion). Opposition to rectification is advanced on the different basis of a possessory title to the disputed land under the 1980 Act by virtue of 12 years adverse possession from the accrual, in July 1988, of a right of action to recover the disputed land.
What matters under English land law, says the respondent, is the "bedrock" doctrine of relativity of title. The question is: who has the better title to the disputed land? Is it the appellant, by virtue of prior registration? Or is it the respondent, by virtue of adverse possession of it by the owners of No 31 for 12 years and more from taking possession of it in July 1988? At that time the owners of No 31 fixed a chain and metal eye (or hook) into a concrete bollard to demarcate the disputed land as a parking space, which had been used, and was used thereafter, exclusively by the owners of No 31.
In brief, the respondent contends that, by reason of more than 12 years adverse possession of the disputed land by her predecessors in title to No 31, the appellant's right of action to recover it is statute-barred; that she has acquired a possessory title to it; and that rectification of the register by cancelling the mistaken inclusion of the disputed land in the title to No 31 is not available to the appellant.
Alternatively, the respondent contends that she has an easement over the disputed land. As a result of long and open use as of right for car parking, No 31 enjoys, as the dominant tenement, a prescriptive right to park a car on the disputed land, as the servient tenement.
This case, which I hope is extremely rare in practice, raises basic questions about the gain and loss of title to registered land under the 1980 Act and the Land Registration Act 1925 (the 1925 Act), but now replaced by the Land Registration Act 2002 (the 2002 Act.) Can a person with a registered title have "a right of action" to recover his land from a person who also has a registered title to it and is in possession of it? Can a person in possession of land, which is registered in his name, be in "adverse possession" of it within the meaning of the 1980 Act? Can a person acquire a prescriptive easement over land to which he has a registered title by relying on long user as of right? Is this in substance a boundary dispute between No 29 and No 31 to be resolved by application of the general boundaries rule? What principles govern the exercise of the discretion to rectify the land register in a case of concurrent registrations of title?
Expecting to find answers to those questions somewhere in the legislation, I turn to the 1980 Act and to the 1925 Act.
The legislation
The two legislative regimes, which applied to registered land before the 2002 Act came into force on 13 October 2003, implement different legal policies about gain and loss of title.
I would regard as paramount the specific legal policy in establishing a system for the registration of title to land. Although the 1925 Act has been replaced by the 2002 Act, it is common ground that its provisions continue to apply to this case. The objective of the 1925 Act was to confer security of title by means of entries in the land...
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